Law and Media Round Up – 28 March 2011

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In this regular feature we draw attention to the last week’s law and media news and next week’s upcoming events. If readers have any news or events which they would like to draw attention to please add them by way of comments on this post.

News

Liberal Democrat MPs continue their parliamentary activity in the field of media law. On 17 March 2011, John Hemming MP – who recently disclosed information covered by a High Court injunction (see our post here) – spoke about what he called a “hyper injunction”. This was an undertaking given to the court by a constituent that he would not speak to his MP (as it happened, Mr Hemming). The Head of Legal Blog has been looking into the background to this case and other cases taken up by Mr Hemming, concluding that “what MPs do must be subject to scrutiny, too. The public is entitled to ask whether there have been abuses of power here – or an abuse of privilege”.

According to an Early Day Motion tabled by Cambridge MP, Dr Julian Huppert and others, effective reform of the “outdated and unbalanced” libel laws can only be delivered by the Defamation Bill if it stops companies and corporations from suing for libel and restricts them to actions for malicious falsehood. There is a report of the motion in the Press Gazette.

There were a number of “phone hacking developments” this week. On Thursday 24 March 2011, Acting Deputy Commissioner John Yates gave evidence about the phone hacking affair to the House of Commons Culture, Media and Sport Committee. We had a post about this hearing. He is due to give evidence to the Home Affairs Select Committee on 29 March 2011.

At a hearing on Friday 25 March 2011, Mr Justice Vos was told that News International has discovered about 8,000 documents on its electronic archive of emails which may be relevant to the News of the World phone hacking scandal. At the same hearing the actor Jude Law obtained an order for disclosure of “phone hacking” documents against the Metropolitan Police.

All the 16 plus “phone hacking” actions will come back before Mr Justice Vos on 15 April 2011 for a Case Management Conference for directions on how the cases should proceed.

We came across this interesting story in the “Telegraph and Argus” about an unsuccessful 1911 libel case brought by an MP against a barrister and a local newspaper. The newspaper had published a letter from the barrister accusing William Clough MP of carrying a “cowardly attack” (on a woman in a crowd after the eleciton of 1910) and being a “vulgar hypocrite”. After Mr Clough was cross-examined by F E Smith, the jury found for the defendants.

The “Minority Thought” blog has a post entitled “Demonise the Muslims? Fine by us, says PCC” about a complaint concerning newspaper coverage which irrelevantly mentioned the religion of Respect Partyt councillors who refused to give a standing ovation to a Marine who’d just been presented with the George Cross.

Meanwhile, PCC Chair Baroness Buscombe gave a speech to the Westminster Media Forum on regulating privacy and online media, defending the role of the PCC in general and its privacy decisions in particular. She discussed the Baskerville adjudication (which we considered in this post) – without engaging in any of the criticisms of that decision. She reached the remarkable conclusion

“The PCC is showing itself ideally suited both to dealing with specific complaints about alleged intrusions by the press; and to setting boundaries in relation to what behaviour by journalists is permissible and what is not. I believe we can also play an important role in promoting discourse among the public about how best they can protect their privacy in the online environment – particularly on social networking websites“.

Statements in Open Court and Apologies

We are not aware of any Statements in Open Court this week.

Lily Allen won damages from Mail Online, the website of the Daily and Sunday Mail, in a privacy and copyright action. There is a report in the Press Gazette.

In Northern Ireland, the “Sunday “World” newspaper has agreed to pay libel damages to A Dundonald GP is to receive libel damages over false newspaper allegations linking him to a neighbourhood dispute involving a former glamour model.

In the Courts

The hearing of the appeal in Ambrosadiou v Coward took place on Monday 21 March 2011. Although listed in private the hearing, in fact took place in public. We are grateful to Mr Benjamin Pell for this account of what took place:

[Court Associate to B Pell -“This hearing is listed in private. Please leave”. B Pell-“I am staying here until the court convenes and the Master of The Rolls gives a ruling on whether or not the hearing should not take place in public.”]

The Master of the Rolls: ” I understand that there is a suggestion that this hearing should be held in private. My immediate reaction is that it shouldn’t be unless it is absolutely necessary. We can make an order that no document should be referred to outside court and we can review what happens about matters mentioned in court at the end of the case. You and Mr Browne should also be able to refer to evidence in such a way as to ensure that nothing private is mentioned in court. I very much dislike the idea of going into private unless it is absolutely necessary”

Richard Spearman QC: “That is a very clear indication from Your Lordship”.

The Master of the Rolls: “Yes but if you want us to go into private in order to argue this matter, we can do so. If you would like time to discuss it with those behind you, please do so”.

Richard Spearman QC: “If we can go into private. There is Mr Benjamin Pell in court”

[ B Pell leaves at 10.46am. Public hearing resumes at 10.49am]

The Master of the Rolls: ” This is a case where certain matters have been put in the public domain which the Appellant says should not have been and there is a concern that evidence mentioned in the skeleton arguments and documents should be kept out of the public domain. In those circumstances Mr Spearman has asked us to hold the hearing in private. It is important of course for justice not only to be done but to be seen to be done and in this case we are satisfied that we can hear the matter in public. Members of the public and press should understand that nothing contained in the documentation can be disseminated and I also make it clear and this takes effect immediately that if any document is referred to, it should not be reported. If, by accident, counsel does refer to a document or some evidence that is private, then we can make an Order there and then that it should not be mentioned outside court. So it seems to us that we can have a hearing in public while still protecting the privacy of the Appellant”

On 22 March 2011 Mrs Justice Sharp heard an application in what appears to be a privacy case – RJA v AJR. This is the third time this has been listed (previously on 4 March, Mr Justice King and 18 March, Mrs Justice Sharp) but, as far as we are aware, there is not yet a public judgment.

On Wednesday 23 March 2011, the Court of Appeal gave judgment in the case of Baturina v Times Newspapers ([2011] EWCA Civ 308) The appeal was allowed. There is a news report about the case in the “Daily Telegraph”.

On the same day Mummery LJ heard renewed applications for permission to appeal in the case of Berezovky v Terluk. Permission to appeal on quantum was granted. Permission to appeal on liability and new evidence was adjourned to a hearing on notice with appeal to follow if permission granted.

On Friday 25 March 2011, Mrs Justice Sharp gave summary judgment for the defendant in the case of Bowker v RSPB [2011] EWHC 737 (QB). There is a news report about the case in the Press Gazette

Media and Freedom of Expression Law in Other Jurisdictions

In Hogan v Hinch ([2011] HCA 4) a radio broadcaster lost his High Court challenge over his naming of two sex offenders in contravention of suppression orders by the Victorian County Court. A challenge to the relevant statutory provisions on freedom of expression and open justice grounds was unsuccessful.

In the case of Peter Holmes a Court v Tony Papaconstuntinos [2011] NSWCA 59 the Court of Appeal of New South Wales allowed the appeal of businessman Peter Holmes a Court holding that the publications complained of were published on an occasion of qualified privilege. The case contains an important discussion of the law of qualified privilege.

In Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 the Court of Appeal of New South Wales allowed, in part, the appeal of the plaintiff against findings by the judge that various imputations made by the defendant were substantially true or were “fair comment”. There is a report on the judgment in the “Sydney Morning Herald”.

We mentioned the British Columbia case of Lawson v. Baines last week. The judgment is now available(2011 BCSC 326). The judge found that the words complained of meant that the was corrupt in the sense that he had associated with two convicted criminals in their fraudulent scheme and further that he had obtained some personal benefit. There was no substantive defence and compensatory damages of Can$30,000 were awarded.

In the case of Le Roux v Dey ([2011] ZACC 4) the South African Constitutional Court considered an appeal in a defamation action arising out of the publication by the applicants, then schoolchildren, of a computer-created image in which the face of Dr Dey, then a deputy principal of their school, was super-imposed alongside that of the school principal on an image of two naked men sitting in a sexually suggestive posture. The majority of the Court affirmed the finding of the majority of the Supreme Court of Appeal that the image was defamatory of Dr Dey. The damages award was reduced from R45,000 to R25,000. Cameron J and Froneman J held that the image was not defamatory, but that it infringed upon Dr Dey’s personal dignity. They would have awarded the same relief for that infringement as the majority did for the defamation. . Yacoob J and Skweyiya J would have allowed the appeal. The Court ordered the defendants to apologise to the applicant. There is a Case Summary published by the Court.

If liberal democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and if there are strong liberal and democratic justifications for freedom of expression, then, in essence, my question is this: are there similarly strong free speech justifications founded in the rule of law? The answer I have floated in this post is that there are.

The six part BBC documentary series ‘See you in Court’ begins at 10.35pm on Tuesday 29 March 2011. Episode 1 follows Lembit Opik and Sheryl Gascoigne. The 5RB website has a piece on the series, drawing attention to the members of Chambers who appear in some of the episodes.